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Resources For

Pay & Leave Claim Decisions

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Office of the General Counsel

Date: July 28, 1998
Matter of: [xxx]
File Number: S001798

OPM Contact: Murray M. Meeker

The [agency] has requested an opinion concerning its authority
to grant retroactive promotions and back pay to an [agency]
employee who, because of erroneous information provided by an
[agency] official, was not promoted on an earlier date.(1) The
request is denied.

While the [agency's] request letter states that there are no
Comptroller General decisions that are completely on point, these
decisions do clearly establish that retroactive pay actions may
only be granted where the erroneous action was contrary to statute,
regulation, or a nondiscretionary agency policy. See 63 Comp. Gen.
417 (1984) and the decisions cited therein.

The [agency's] request letter acknowledges that the delay that
resulted from the erroneous information occurred prior to the
approval of the employee's promotion by an authorized agency
official. SeeBarbara W. Scheaffer, B-200717,
January 28, 1981. It is not enough that an action would have been
taken but for an administrative error or that an action was
inequitable. See 58 Comp. Gen. 59 (1978) and Janice
Levy, B-190408, December 21, 1977. Additionally, it is not
sufficient for the purpose of determining whether there is
authority to grant a retroactive promotion or back pay that an
agency official misinterpreted the applicable law. See B-168715,
January 22, 1970.

This settlement is final. No further administrative review is
available within OPM. Nothing in this settlement limits the
employee's right to bring an action in an appropriate United States
Court.

1.
This decision is being issued pursuant to our authority under 31
U.S.C. 3529 to issue advance decisions to agencies on matters
involving compensation and leave.